EVIDENCE - Batc h 1

(16). INTERPACIFIC TRANSIT, INC. vs. RUFO AVILES and JOSEPHINE AVILES,
respondents.
Balane, Barican, Cruz, Alampay Law Office for petitioner. Francisco G. Mendoza
private respondents.
G.R. No. 86062

June 6, 1990

CRUZ, J.:
This case hinges on the proper interpretation and application of the rules on the
admissibility of documentary evidence and the viability. of a civil action for damages
arising from the same acts imputed to the defendant in a criminal action where he
has been acquitted.
In the information filed against Rufo and Josephine Aviles, the private respondents
herein, it was alleged that being then sub-agents of Interpacific Transit, Inc. and as
such enjoying its trust and confidence, they collected from its various clients
payments for airway bills in the amount of P204,030.66 which, instead of remitting
it to their principal, they unlawfully converted to their own personal use and benefit.
1
At the trial, the prosecution introduced photocopies of the airway bills supposedly
received by the accused for which they had not rendered proper accounting. This
was done in, the course of the direct examination of one of the prosecution
witnesses. 2 The defense objected to their presentation, invoking the best evidence
rule. The prosecution said it would submit the original airway bills in due time. Upon
such undertaking, the trial court allowed the marking of the said documents a s
Exhibits "B" to "OO." The e prosecution n did submit the original airway bills nor did
it prove their loss to justify their substitution with secondary evidence.
Nevertheless, when the certified photocopies of the said bills formally were offered,
3 in evidence, the defense interposed no objection.
In acquitting the accused, Judge Herminio I. Benito of the Regional Trial Court of
Makati rejected the agency theory of the prosecution and held that the relationship
between the petitioner and Rufo Aviles was that of creditor and debtor only. "Under
such relationship,' it declared, "the outstanding account, if any, of the accused in
favor of ITI would be in the nature of an indebtedness, the non- payment of which
does not Constitute estafa." 4
The court' also held that the certified photocopies of the airway by were not
admissible under the rule that "there can be no evidence of a writing the content of
which is the subject of inquiry other' than the writing itself." Loss of the originals
had not been proved to justify the exception to the rule as one of the prosecution
witness had testified that they were still in the ITI bodega. Neither had it been

shown that the originals had been "recorded in an existing record a certified copy of
which is made evidence by law."

In its order denying the motion for reconsideration, the trial court declared that it
"had resolved the issue of whether the accused has civil obligation to ITI on the
basis of the admissibility in evidence of the xerox copies of the airway bills." 5
Right or wrong, the acquittal on the merits of the accused can no longer be the
subject of an appeal under the double jeopardy rule. However, the petitioner seeks
to press the civil liability of the private respondents, on the ground that the
dismissal of the criminal action did not abate the civil claim for the recovery of the
amount. More to the point, ITI argues that the evidence of the airways bills should
not have been rejected and that it had sufficiently established the indebtedness of
the private respondents to it.
The Court of Appeals 6 affirmed, the decision of the trial court in toto, adding that
the existing record spoken of in Section 2 (e) and (d) of Rule 130 of the Rules of
Court must be in the custody, of a public officer only. It also declared that:
Since no evidence of civil liability was presented, no necessity existed on the part of
the private respondents to present evidence of payment of an obligation which was
not shown to exist.
The petitioner now asks this Court to annul that judgment as contrary to law and
the facts established at the As in the courts below, it is insisting on the admissibility
of its evidence to prove the civil liability of the private respondents.
We agree with the petitioner. The certified photocopies of the airway bills should
have been considered.
In assessing this evidence, the lower courts confined themselves to the best
evidence rule and the nature of the documents being presented, which they held
did not come under any of the exceptions to the rule. There is no question that the
photocopies were secondary evidence and as such were not admissible unless there
was ample proof of the loss of the originals; and neither were the other exceptions
allowed by the Rules applicable. The trouble is that in rejecting these copies under
Rule 130, Section 2, the respondent court disregarded an equally important
principle long observed in our trial courts and amply supported by jurisprudence.
This is the rule that objection to documentary evidence must be made at the time it
is formally offered. as an exhibit and not before. Objection prior to that time is
premature.
It is instructive at this paint to make a distinction between Identification of
documentary evidence and its formal offer as an exhibit. The first is done in the

course of the trial and is accompanied by the marking of the evidence an an exhibit.
The second is done only when the party rests its case and not before. The mere fact
that a particular document is Identified and marked as an exhibit does not mean it
will be or has been offered as part of the evidence of the party. The party may
decide to formally offer it if it believes this will advance its cause, and then again it
may decide not to do so at all. In the latter event, the trial court is, under Rule 132,
Section 35, not authorized to consider it.

Objection to the documentary evidence must be made at the time it is formally

offered, not earlier. The Identification of the document before it is marked as an
exhibit does not constitute the formal offer of the document as evidence for the
party presenting it. Objection to the Identification and marking of the document is
not equivalent to objection to the document when it is formally offered in evidence.
What really matters is the objection to the document at the time it is formally
offered as an exhibit.
In the case at bar, the photocopies of the airway bills were objected to by the
private respondents as secondary evidence only when they, were being Identified
for marking by the prosecution. They were nevertheless marked as exhibits upon
the promise that the original airway bills would be submitted later. it is true that the
originals were never produced. Yet, notwithstanding this omission, the defense did
not object when the exhibits as previously marked were formally offered in
evidence. And these were subsequently admitted by the trial court. 7
In People v. Teodoro, 8 a document being Identified by a prosecution witness was
objected to as merely secondary, whereupon the trial judge ordered the testimony
stricken out. This Court, in holding the objection to be premature, said:
It must be noted that the Fiscal was only Identifying the official records of service of
the defendant preparatory to introducing them as evidence. ... The time for the
presentation of the records had not yet come; presentation was to be made after
their Identification. For what purpose and to what end the Fiscal would introduce
them as evidence was not yet stated or disclosed. ... The objection of counsel for
the defendant was, therefore, premature, especially as the Fiscal had not yet stated
for what purpose he would introduce the said records. ...
The time for objecting the evidence is when the same is offered. (Emphasis
supplied).
The objection of the defense to the photocopies of the airway bins while they were
being Identified and marked as exhibits did not constitute the objection it should
have made when the exhibits were formally offered in evidence by the prosecution.
No valid and timely objection was made at that time. And it is no argument to say
that the earlier objection should be considered a continuing objection under Sec. 37

of Rule 132, for that provision obviously refers to a single objection to a class of
evidence (testimonial or documentary) which when first offered is considered to
encompass the rest of the evidence. The presumption is, of course, that there was
an offer and a seasonable objection thereto. But, to repeat, no objection was really
made in the case before us because it was not made at the proper time.
It would have been so simple for the defense to reiterate its former objection, this
time seasonably, when the formal offer of exhibits was made. It is curious that it did
not, especially so since the objections to the formal offer of exhibits was made in
writing. In fact, the defense filed no objection at all not only to the photocopies but
to all the other exhibits of the prosecution.
The effect of such omission is obvious. The rule is that evidence not objected to is
deemed admitted and may be validly considered by the court in arriving at its
judgment. 9 This is true even if by its nature the evidence is inadmissible and would
have surely been rejected if it had been challenged at the proper time.

The records certainly would have been the, beet proof of such former conviction.
The certificate was not the best proof. There seems to be no justification for the
presentation of proof of a character. ... Under an objection upon the ground that the
said certificate was not the best proof, it should have been rejected. Once admitted,
however, without objection, even though not admissible under an objection, we are
not inclined now to reject it. If the defendant had opportunely presented an
objection to the admissibility of said certificate, no doubt the prosecution would
have presented the best proof upon the questions to which said certificate relates.
10
(It) is universally accepted that when secondary or incompetent evidence is
presented and accepted without any objection on the part of the other party, the
latter is bound thereby and the court is obliged to grant it the probatory value it
deserves. 11
We hold therefore that it was erroneous for the lower courts to reject the
photocopies of the airway bills to prove the liability of the private respondents to
the petitioner. While we may agree that there was really no criminal liability that
could attach to them because they had no fiduciary relationship with ITI, the
rejected evidence sufficiently established their indebtedness to the petitioner.
Hence, we must reverse the ruling below that "on account of the inadmissibility of
the prosecution's Exhibits 'B' and 'OO', coupled with the denial made by the
accused, there appears to be no concrete proof of such accountability."
Accoording to Rule 120, Section 2, of the Rules of Court:

In case of acquittal, unless there is a clear showing that the act from which the civil
liability might arise did not exist, the judgment shall make a finding on the civil
liability of the accused in favor of the offended party.
With the admission of such exhibits pursuant to the ruling above made, we find that
there is concrete proof of the defendant's accountability. More than this, we also
disbelieve the evidence of the private respondents that the said airway bills had
been paid for. The evidence consists only of check stubs corresponding to payments
allegedly made by the accused to the ITI, and we find this insufficient.
As it is Aviles who has alleged payment, it is for him to prove that allegation. He did
not produce any receipt of such payment. He said that the cancelled payment
checks had been lost and relied merely on the check stubs, which are self-serving.
The prosecution correctly stressed in its motion for reconsideration that the accused
could have easily secured a certification from the bank that the checks allegedly
issued to ITI had been honored. No such certification was presented. In short, the
private respondents failed to establish their allegation that payment for the airway
bills delivered to them had been duly remitted to ITI.
In Padilla v. Court of Appeals, 12 we held:

There appear to be no sound reasons to require a separate civil action to still be

filed considering that the facts to be proved in the civil case have already been
established in the criminal proceedings where the accused was acquitted. He was,
in fact, exonerated of the charge. The constitutional presumption of innocence
called for more vigilant efforts on the part of prosecuting attorneys and defense
counsel, a keener awareness by all witnesses of the serious implications of perjury,
and a more studied consideration by the judge of the entire records and of
applicable statutes and precedents. To require a separate civil action simply
because the accused was I acquitted would mean needless clogging of court
dockets and unnecessary duplication of litigation with all its attendant loss of time,
effort, and money on the part of all concerned.
By the same token, we find that remand of this case to, the trial court for further
hearings would be a needless waste of time and effort to the prejudice of the
speedy administration of justice. Applying the above ruling, we hereby declare
therefore, on the basis of the evidence submitted at the trial as reflected in the
records before us, that the private respondents are liable to the petitioner in the
sum of P204,030.66, representing the cost of the airway bills.
WHEREFORE, the petition is GRANTED. The challenged decision of the Court of
Appeals is SET ASIDE and a new one is rendered ORDERING the private respondents
to. pay to the petitioner the sum of P204,030.66, with 6% interest from November
16, 1981, plus the costs of this suit.

SO ORDERED.
Narvasa (Chairman), Gancayco and Medialdea, concur. Grio-Aquino, J., is on leave.